UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: July 24, 1968.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 5, APPELLEE
UNITED STATES OF AMERICA EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, APPELLANT
Biggs, McLaughlin and Forman, Circuit Judges.
BIGGS, C. J.:
The Equal Employment Opportunity Commission (EEOC) appeals from an order of the court below which set aside, upon the petition of appellee International Brotherhood of Electrical Workers, Local Union No. 5 (IEW), pursuant to Section 710(c) of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-9(c), the Commission's demand, under Section 709(a), 42 U.S.C.A. § 2000e-8(a), for access to evidence within the control of the IEW. Jurisdiction in the court below was based on Section 706(f), 42 U.S.C.A. § 2000e-5(f). See also Sections 710(b) and 710(c) of the Act, 42 U.S.C.A. §§ 2000e-9 (b) and 2000e-9(c).
The Equal Employment Opportunity Commission is charged with the duty of investigating complaints that "an employer, employment agency, or labor organization has engaged in an unlawful employment practice . . . [and] if the Commission shall determine . . . that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Section 706(a), 42 U.S.C.A. § 2000e-5(a). In connection with any investigation of a filed charge the Commission is authorized to have access to relevant evidence, Section 709(a), and may seek judicial enforcement of its request for evidence. Section 710(b), 42 U.S.C.A. § 2000e-9 (b). If any person requested by the Commission to produce evidence wishes to have the Commission demand modified or set aside he may bring a suit for that purpose under Section 710(c). In the case at bar we are asked to review an order of the court below which set aside the Commission's request for access to evidence.
The relevant facts are as follows. On August 12, 1965, Carl, the "Charging Party", a Negro, wrote the Commission a sworn letter alleging that on July 21, 1965*fn1 he was discriminatorily excluded from membership in the IEW because of his race. On September 3, 1965, the Commission, in light of Section 706(b), 42 U.S.C.A. § 2000e-5(b),*fn2 forwarded Carl's complaint to the Pennsylvania Department of Labor and Industry, Human Relations Commission (the Pennsylvania Commission), noting that the EEOC could not accept jurisdiction over Carl's complaint until 60 days after proceedings had been commenced under the fair employment practice law of Pennsylvania. A letter to that effect also was sent to Carl. On December 16, 1965, the Pennsylvania Commission not having completed its investigation of Carl's charge, the EEOC sent a letter to Carl asking him if he desired the EEOC to continue to process his charge. On December 27, 1965 the Director of Compliance received Carl's answer requesting the EEOC to assert jurisdiction. On January 28, 1966 Carl was informed by the Pennsylvania Commission that its investigation did not substantiate his charge.*fn3 Commission officer Thompson was assigned to the case but did not commence his investigation until mid-August 1966. Thompson had Carl execute a formal charge form on August 17, 1966 and attempted to effect personal service of the charge on the IEW.The "formal charge" was mailed to the IEW and received by it on December 14, 1966. By a letter dated April 11, 1967, served on the IEW on April 12, the Commission demanded of the Union access to certain specified documentary evidence.
On May 3,*fn4 1967, the IEW filed a petition with the court below requesting it to set aside the Commission's demand for access to evidence on the ground that the charge had not been timely filed. The EEOC filed an answer to the petition and included therein prayers to dismiss the IEW's petition and enforce the EEOC's demand for access to evidence. It appears that the parties are in substantial agreement upon the relevant operative facts. After a hearing the court entered an order in favor of the Union and filed a memorandum opinion, stating: " . . . the pertinent procedural provisions of the Civil Rights Act of 1964, have not been complied with. Giving effect to these procedural matters, in particular Section 706(a) . . . which requires service upon the party charged, as prerequisite to the validity of the charge filed, the Commission is deemed to be without authority to conduct an investigation with respect to it.
"The only charge served upon the Union in this proceeding is obviously beyond the statutory period during which it was required to be filed -- namely, within thirty (30) days after the termination of state proceedings, or within two hundred ten (210) days after the alleged unlawful employment practice, whichever was the earlier." The court did not expressly dispose of the prayer of the EEOC that it be granted access to evidence. The Commission has appealed.
Preliminarily, the appellee IEW asserts that the order of the court below is not appealable and that consequently we are without power to review the judgment. The Union bases its contention on the ground that the Civil Rights Act of 1964 does not provide for review of the type of judicial judgment rendered in the suit at bar whereas there is provision for review of other judicial proceedings under the Act. We cannot agree with the IEW that the fact that Congress specifically provided for appellate review of civil actions brought pursuant to Section 706(e) and proceedings brought pursuant to Section 706(i) compels the conclusion that Congress did not intend appellate review of proceedings brought pursuant to Section 710(c). In the absence of specific statutory language to the contrary this court has jurisdiction to review all "final" decisions of the district courts. 28 U.S.C.A. § 1291. The question before us, consequently, is whether the decision of the court below is a final one.*fn5
The IEW relies on Cobbledick v. United States, 309 U.S. 323, 84 L. Ed. 783, 60 S. Ct. 540 (1940), and our opinion in In re Grand Jury Investigation, Frank Jaskiewicz, 362 F.2d 942 (1966). Rather than supporting the contention of the IEW, the Cobbledick decision demonstrates that the position taken by the Commission, viz., that a district court's setting aside of an administrative, rather than a judicial, request for evidence is a final judgment and appealable. The Supreme Court held in Cobbledick that an order by a district court denying a motion to quash a subpoena duces tecum directing a witness to appear before a grand jury was not a "final" judgment and therefore the Court of Appeals was without jurisdiction to review the lower court's decision. Mr. Justice Frankfurter, however, speaking for the majority, stated: "One class of cases dealing with the duty of witnesses to testify presents differentiating circumstances. These cases have arisen under § 12 of the Interstate Commerce Act, whereby a proceeding may be brought in the district court to compel testimony from persons who have refused to make disclosures before the Interstate Commerce Commission. In these cases the orders of the district court directing the witness to answer have been held final and reviewable . . . 'It is the end of a proceeding begun against the witness -- . . .' . . . [A] proceeding like that under § 12 of the Interstate Commerce Act may be deemed self-contained, so far as the judiciary is concerned -- as much so as an independent suit in equity in which appeal will lie from an injunction without the necessity of waiting for disobedience. After the court has ordered a recusant witness to testify before the Commission, there remains nothing for it to do. Not only is this true with respect to the particular witness whose testimony is sought; there is not, as in the case of a grand jury or trial, any further judicial inquiry which would be halted were the offending witness permitted to appeal. The proceeding before the district court is not ancillary to any judicial proceeding. So far as the court is concerned, it is complete in itself." 309 U.S. at 329-30. This court's decision in In re Grand Jury Investigation, Frank Jaskiewicz, supra, is distinguishable from the case at bar for the same reason. See also Ellis v. Interstate Commerce Commission, 237 U.S. 434, 59 L. Ed. 1036, 35 S. Ct. 645 (1915).
The same distinction between judicial and administrative proceedings has been drawn where the district court, as in the case at bar, has quashed an order requiring a witness to produce certain documents before an administrative body. Martin v. Chandis Securities Co., 128 F.2d 731 (9 Cir. 1942). See Rule 81(a)(3), Fed. R. Civ. Proc., 28 U.S.C.A. We hold that the judgment of the court below was "final" and therefore was appealable.
We turn now to the merits of the appeal. We can find no provision of the Act which supports the views of the Union and of the court below.*fn6 In our opinion, Carl's letter of August 12, 1965, duly sworn to and stating the substance of the alleged discriminatory practice, met all requirements of Section 706(a), 42 U.S.C.A. § 2000e-5(a).*fn7 It was not, however, a valid charge when received by the Commission. See Sections 706(b) and 706(d), 42 U.S. C.A. § 2000e-5(d), for it had not been sent to the Pennsylvania Human Relations Commission and the required sixty days had not passed.*fn8 The IEW contends that the "formal charge" prepared by the EEOC for Carl and served upon and received by the IEW on December 14, 1966 is in fact and law the only effective charge and that Carl's letter to the EEOC received by it on December 27, 1965 requesting the EEOC to assert jurisdiction and to process his claim is of no effect. We cannot agree for the IEW's position seems to us to amount to nothing more than an exercise in semantics. There is no substantial difference in the contents of Carl's sworn letter of August 12, 1965 and the "formal charge" served upon the IEW on December 14, 1966. A charge is a valid charge when it is lodged with the EEOC provided it is sworn to and contains the substance of an alleged discriminatory practice as here. We hold that when Carl's answer to the EEOC's letter of December 16, 1965 was received by the EEOC on December 27, 1965 Carl's charge of discriminatory practice set out in his letter to the Commission of August 12, 1965 became an effective charge as of December 27, 1965. It is not necessary to determine here whether or not there might be a relation back of the charge to August 12, 1965, the date of Carl's letter, for the December 27, 1965 date is within the two hundred and ten day limit.*fn9
It must be borne in mind that the prime duty of the EEOC is to investigate and conciliate. We perceive no time limitation imposed by the Equal Employment Opportunities Act or the regulations of the EEOC by which a charge must be served and proceeded with by the Commission. Cf. Sections 709(a) and 710(a), 42 U.S.C.A. §§ 2000e-8 and 2000e-9. In this respect the Equal Employment Opportunities Act seems similar to the National Labor Relations Act. The National Labor Relations Board, aside from the restriction that it may not act upon a charge filed with it later than six months after the occasion of the alleged unfair labor practice, seems untrammeled as to any period of time in which it may make an investigation of a charge. See 29 U.S.C.A. Section 160(b). While it is true that the National Labor Relations Board may make orders in respect to alleged unfair labor practices, we cannot consider this to be a basis for circumscribing the powers of investigation by the EEOC in order to develop a basis for conciliation. We also note the contents of 29 C.F.R., Title 29, Ch. I., Regulations of the National Labor Relations Board. The Act sub judice and the Regulations of the EEOC are based in large part on the National Labor Relations Act and the Regulations of the National Labor Relations Board. See also the investigatory powers of the Interstate Commerce Commission, 49 U.S.C.A. Section 13. As we have stated, the demand for examination with the right to copy was made by the EEOC upon the IEW on April 12, 1967. That demand was rejected but we can perceive no sound basis for its rejection. On the present record the EEOC is entitled to compel the IEW to permit the examination of its records with the right to copy in accordance with the demand made by the EEOC on April 12, 1967.*fn10 See Section 709(a) and Section 710(b), 42 U.S.C.A. §§ 2000e-8(a) and 2000e-9(b).
Accordingly, the judgment of the court below will be reversed and the case remanded with directions to dismiss the complaint filed by the IEW and to order the IEW to permit the examination of records with the right to copy in accordance with the demand.